Confessions in an international age: re-examining admissibility through the lens of foreign interrogations.

• Author: Siegel, Julie Tanaka
• Position: NOTE

In Colorado v. Connelly the Supreme Court held that police misconduct is necessary for an inadmissible confession. Since the Connelly decision, courts and scholars have framed the admissibility of a confession in terms of whether it successfully deters future police misconduct. As a result, the admissibility of a confession turns largely on whether U.S. police acted poorly, and only after overcoming this threshold have courts considered factors pointing to the reliability and voluntariness of the confession. In the international context, this translates into the routine and almost mechanic admission of confessions--even when there is clear indication that the confession is coerced or unreliable. Confessions obtained by foreign officers seldom meet the Connelly threshold because the United States has neither the ability, nor the goal, of controlling foreign police conduct. In light of the international context, courts should reexamine the Connelly test, which is not in line with the fundamental ideals of justice and fairness that the U.S. Constitution protects. Courts should tailor a test focused on the reliability of the confession in order to protect the defendant's fundamental rights.

TABLE OF CONTENTS INTRODUCTION I. THE CURRENT CONFESSION-LAW FRAMEWORK A. The Rise and Fall of the Totality-of-the-Circumstances Test B. Colorado v. Connelly and the State-Action Requirement II. THE FAILURES OF THE SYSTEM A. Failure of Deterrence in the Foreign Context B. Systematic Admission of Coerced International Confessions. C. Lower Courts' Break with the Connelly Framework III. A NEW WAY FORWARD A. Reinterpreting the State-Action Requirement B. Building Reliability-Based Rules 1. Intelligence of the Defendant 2. Penalties Imposed by the Interrogator 3. Evaluating the Fit of the Confession CONCLUSION INTRODUCTION

A defendant is brought to trial in a U.S. court. He was interrogated overseas, and the key piece of evidence against him is a confession extracted by foreign law enforcement agents. The confession was obtained under coercive circumstances, and the defendant was interrogated for hours--perhaps even tortured--before confessing. Despite the coercive circumstances, under Colorado v. Connelly (1) the court admits his confession. This fact pattern recurs frequently in cases involving confessions obtained by foreign law enforcement. (2) Once the confession is admitted and used against the defendant, it significantly increases the likelihood of conviction. (3)

Confessions are one of the most powerful forms of evidence introduced in court (4) because jurors, judges, and the public often believe confessions betray guilt. (5) For those who have never undergone a police interrogation, it is difficult to understand why anyone would falsely confess. False confessions happen somewhat regularly, however, particularly when police use coercive or overbearing tactics. (6) It is also much more likely for those who are mentally or emotionally vulnerable to confess falsely. (7) Because confessions have a large impact on the outcome of a case, it is essential that courts adequately balance the admission of a confession with the risks that the admission poses to a defendant in trial.

Historically, the admissibility of a confession turned on its voluntariness. (8) Courts believed that admitting an involuntary confession violated the defendant's fundamental Fifth and Fourteenth Amendment rights. (9) Courts cited to the Due Process Clauses of the Fifth and Fourteenth Amendments (10) and the Fifth Amendment's privilege against self-incrimination (11) as reasons for excluding confessions. (12) Courts analyzed the totality of the circumstances to determine whether the defendant's confession was involuntary and violated these rights. (13)

But courts struggled to apply the totality-of-the-circumstances approach--it was too vague to provide a clear standard for admissibility. (14) In response, the Supreme Court announced a new standard in Colorado v. Connelly, where it found that the admissibility of a confession is predicated on harmful state action. (15) Connelly requires that courts find confessions inadmissible only if police use coercive conduct, effectively creating a state- action threshold. (16) As a result, other concerns animating the traditional totality-of-the-circumstances analysis, such as the reliability of the confession and free will of the defendant, (17) are pushed into the background. (18)

Connelly established a police conduct test that has made it challenging for courts to develop a coherent body of law regarding the admissibility of confessions. The difficulties courts face in evaluating confessions obtained by foreign police in particular illuminate the Connelly test's shortcomings. (19) Connelly places a limiting principle on the exclusion of confessions. Under Connelly, confessions may only be excluded if the inculpatory statements are produced at least in part by coercive police conduct. (20) Further, this limit has come to mean that deterring police misconduct is one of the primary goals of excluding confessions. (21) But in the context of interrogations conducted by foreign law enforcement, the deterrence of police misconduct is impossible, since U.S. courts have neither the ability nor the responsibility to deter foreign police authorities. (22) Therefore, Connelly is a bad fit. (23) Applying Connelly in the international context leads to the routine admission of confessions, moving the analysis away from the defendant's rights in favor of examining the interrogator's conduct. (24)

This Note contends that the current framework for assessing the admissibility of confessions is problematic. By examining the admissibility of confessions in the international context, this Note highlights the inadequacies of the Connelly analysis and recommends a more coherent test. (25) Part I examines the evolution of constitutional confession law culminating in the Connelly decision. Part II highlights the inconsistencies and inadequacies of the Connelly analysis by looking at the test's shortcomings in the context of confessions obtained by foreign authorities. Part III contends that courts must refocus their analysis on the defendant's underlying Fifth and Fourteenth Amendment rights by creating a reliability-based test. Courts should consider the reliability of a confession, despite the fact that doing so will not always be easy. The current test--which admits confessions obtained by foreign law enforcement even when those confessions appear manifestly unreliable--has purchased a small measure of doctrinal simplicity at a large cost to the values of justice, fairness, and liberty that the Fifth and Fourteenth Amendments are intended to serve. (26)

1. THE CURRENT CONFESSION-LAW FRAMEWORK

   Since the ratification of the Constitution, courts have determined the admissibility of confessions based on either the Fifth or Fourteenth Amendments of the Constitution. The Due Process Clause of the Fifth Amendment provides that "[n]o person ... shall be deprived of life, liberty, or property, without due process of law," (27) and the Due Process Clause of the Fourteenth Amendment provides that "[no state] shall ... deprive any person of life, liberty, or property, without due process of law." (28) The privilege against self-incrimination of the Fifth Amendment states that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." (29) While the sources of law have remained constant over time, the rationales behind why confessions should be inadmissible have changed. Historically, courts found confessions inadmissible if they were involuntary--an inquiry enveloping a wide range of factors, and resulting in a totality-of-the-circumstances approach. (30) In the totality-of-the-circumstances analysis the court examined a "complex of values" to determine admissibility. (31) However, Colorado v. Connelly changed this analysis, creating a test primarily dependent upon the presence of coercive police action. (32)

   This Part examines the history of constitutional confession law and the diverse set of rationales informing the admissibility of confessions. Section I.A discusses the origins of confession law and its culmination in a totality-of-the-circumstances test--a test that encapsulated multiple rationales but was too vague and inconsistent. Section I.B details Connelly's impact on the voluntariness test, which shifted the voluntariness inquiry from a multifaceted approach to an analysis based on police conduct.

   1. The Rise and Fall of the Totality-of-the-Circumstances Test

      At common law, involuntary confessions were considered inadmissible because they tended to be false and unreliable. (33) This conception of voluntariness was transported to the United States from England. (34) Scholars accepted the idea that voluntariness was based solely on whether the confession was reliable and trustworthy. (35) Confessions were excluded not because of police tactics themselves but rather because the tactics were more likely to produce false or unreliable confessions. (36)

      The idea that involuntary confessions should not be admitted first emerged in Bram v. United States, (37) an extraterritorial case in which Canadian police interrogated Bram, a crewman on a U.S. ship. (38) Bram made several incriminating statements to Canadian officers, and U.S. prosecutors used them as evidence in his trial. (39) The jury found Bram guilty, but he appealed, contending that the admission of his confession violated his Fifth Amendment privilege against self-incrimination. (40) The Supreme Court reversed Bram's conviction, holding that "a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." (41) After Bram, courts used both the Fifth and the...